THE ROAD AHEAD

Enough and more has been said and written since June last year when by a slim majority we voted to leave the European Union.  Since then the differences between us and them have been raked over ad nauseam, and there are many more to come.

I voted to leave, not on a whim, but because I was fed up with the way the Union was being mismanaged by a battery of civil servants who cared little for the greater good, and more for their seat on the gravy train of pensions and perks.

There were, and remain, three areas of concern, and judging from Boris Johnson’s centrefold spread in the Sunday Times, I am not alone.  Immigration remains a major concern for many.  There are too many immigrants with little or no control over their numbers.  We are already overcrowded, with an infrastructure designed for a population of 10 million less than we have today, and it’s getting worse. Vast swathes of the green belt will be trampled afoot to build more and more houses that most prospective occupants cannot afford.  Vast swathes of green belt will be uprooted for more and more motorways, increasing congestion and pollution. And vast swathes of green belt will disappear under expensive and unaffordable rail links to get passengers from London to Leeds saving as much as 40 minutes on the journey!  Yippee Doo! It’s called progress.  These problems are exacerbated by the fact that we don’t have joined-up government. Too much grandstanding and not enough thought for the greater good.  It bodes ill.

I am also concerned about the competence of the European Courts which do not inspire confidence, either in their composition or in their delivery.  The Court of  Human Rights has made itself the object of ridicule with some of its judgments.  We all remember the case of the Jamaican Yardie who couldn’t be deported because he had a cat which had formed a close bond with him, and there are others too many to mention. In many cases, these judgments grate with the English Common Law, which has been around for centuries and tried and tested.  Europe has no common law, so their judgments are a miss-mash of the best and the worst of 27 countries seeking a common legal identity which they will never have.

The European Court of Justice, which the European Union wants to impose on us for ever and a day, has an equally patchy record and has little to commend it. Positively the worst that can be said about it is that it is self-regulating and so free from political control.  Whilst I agree wholeheartedly with the independence of the judiciary, I do not agree with a court that elects its own members (jobs for the boys) and sets its own remuneration rates with frequent and generous uplifts.

If access to the European Union is dependent, inter alia, on bowing the knee to their courts, then I echo the sentiments of a former President of France, the answer is Non.

GRUMPY OLD MAN

You may remember Michael Heseltine, but then again, why would you?  For those with a long memory, he was somebody in the Conservative Party during the reign of the Blessed St. Margaret, who is best remembered by the epithet that when he was good, he was very, very good, and when he was bad, he was awful.  He earned the nickname ‘Tarzan’ because, during one particular heated debate, he seized the Speaker’s mace and swung it round his head.

Towards the end of St. Margaret’s reign, Heseltine began to kick against the prick, almost to the point of being disloyal to the Party.  Emboldened by some of the ‘wets’,  he was persuaded to have  a tilt at the big time, à la Oiky, and St. Margaret was forced out.  Needless to say, Heseltine put his name forward as leader and Prime Minister with the corpse still warm in the grave, but with St. Margaret gone, the thought of Heseltine as the Head Honcho was more than many in the Party could bear.  Imagine his dismay and humiliation when he came second to John Major, promoted well above his rank of corporal, and we, the long suffering public, were forced to endure six years before he was put out of our misery by Tony Blair.

Since then, Heseltine has become a self-appointed Tory Grandee, a title reserved for the old farts who are always good for a quote when the sub-editor has a small column to fill and can’t find anybody else to fill it.  And so it came to pass that Heseltine, now firmly ensconced as the Party’s Grumpy Old Man, has become a fervent anti-Brexiteer, so much so that he refuses to accept the will of the people in the referendum.

That alone may not be sufficient to cast the man into the category of grumpy old man, but his grumpiness knows no bounds when he bemoans the fact that whilst Germany lost the war, ‘we’ have given them the opportunity to win the peace. Make of that what you will, but to me, it seems like complete drivel.

Germany has become the power house of Europe by dint of hard work, good organisational skills, a dedicated and hard-working workforce which doesn’t go on strike at the drop of a cloth cap, and which builds goods we want to buy when all ‘we’ had to offer was British Leyland and Harold Wilson.

Heseltine has been in politics for long enough to know that politics is all about listening to the people and not working for narrow self-interest. One of the main reasons why politicians like Heseltine are held in such low esteem is their failure to respond to the will of the people.  Theresa May was right to sack him for failing to support Article 50, so he should now be put back in his box and the lid slammed tightly shut.

INDEPENDENCE OF THE JUDICIARY

I have no reason to believe that Lord Neuberger is anything other than a thoroughly professional and well respected Supreme Court judge.  His many attractors describe him as a man with a keen intellect and a willingness to listen to reasoned argument  even if he doesn’t follow it.

That said, it could be with a eye to his imminent retirement that he chose to enter the political domain and speak out against two of the four estates of our democracy, namely the Government and the Press.  He referred in particular to the Supreme Court’s ruling against the government in the Brexit appeal, and the Media criticism that followed it. I listened to some of the debate, dominated as it was by Lord Sumption’s colourful ties, but I was appalled to hear Lord ‘Don’t’ Pannick describe the Referendum as an irrelevance.  A crass comment and insulting to the many millions who voted and who thought they were making a difference.  At the end of the day, the Court failed to understand that the Referendum was all about the will of the people and not about Parliament.

Methinks this is a man who doth protest too much.  The Media are perfectly at liberty to criticise judges at all levels if they think they’ve got it wrong, and long may they do so.  This does not equate to an attack on the independence of the judiciary, but if Lord Neuberger feels that his detractors should remain silent,  he is overly sensitive.  He was also overly sensitive in criticising Lynn or Liz Truss, the Lady Chancellor, who knows absolutely nothing about the job, for failing to slap down these detractors.  It may be that the tabloid which branded the three High Court Judges as “enemies of the people” went too far, but if you want to be a judge, you have got to learn to roll with the punches.    To suggest therefore that media criticism of the High Court judges after they ruled last year that parliament not the government should trigger the process of leaving the EU “was undermining the rule of law” was wide of the mark and probably better not said.

He also went on to say: “They [politicians] could have been quicker and clearer. But we all learn by experience, whether politicians or judges. It’s easy to be critical after the event.”

Lord Neuberger continued: “If, without good reason, the media or anyone else undermines the judiciary, that risks undermining our society. The press and the media generally have a positive duty to keep an eye on things. But I think with that power comes the degree of responsibility.”  Amen to that.  Judges wield considerable power, and when they get it wrong, as they do from time to time, who is going to correct them?  It’s a self-perpetuating oligarchy, as judges for the most part don’t like admitting their mistakes.

Finally, to try and bring this unseemly debate to a close, his lordship made one telling and unintended remark, and I paraphrase: “With power comes responsibility.”  That responsibility is not confined to the Media or the Press, or Politicians, but extends to the judiciary.

It is not undermining the independence of the judiciary to hold it to account, and if, after mature reflection, it is plain for all to see they’ve got it wrong, it is a sign of strength, not weakness, to put it right.

GETTING IT WRONG

A firestorm erupted yesterday when the High Court sided with “Parliament” against the Executive about Brexit and triggering Article 50.  The three judges have received a verbal bollocking from the Executive and their ruling will be appealed to the Supreme Court.  I say ‘Supreme’ but it isn’t, not so long as we remain within the European Union, as their judgments are subject to the European Courts.  All very silly, but we’ve known that for several years and done nothing about it until now.

There was the all too familiar media circus on the steps of the Court, an American import we can do without, and fronted by a woman with remarkable teeth calling herself Gill Miller.  Other than her name, I know nothing about her whatsoever.  I knew a Dusty Miller, and of course the legendary Glenn Miller, and Mitch Miller, but Gill Miller was, until yesterday, a complete nobody.  Whatever else, her orthodontist needs a commendation, but other than the teeth, her right to act as the spokesperson in the media circus completely escapes me.  My researches tell me that she is neither a parliamentarian nor a lawyer, just the organ grinder’s monkey.

But enough of Gill Miller and her remarkable teeth, and back to the gravamen of the legal challenge.  On any view as expressed by those qualified to express a view, the judges trespassed on the territory normally occupied by the Executive arm of the Government and they were wrong to do so.  What on earth persuaded them to hear the challenge in the first place is beyond belief, as they were well “off their patch” to use a legal term, not to mention wide of the mark.

And now those seeking to redress the balance are accused of undermining the independence of the judiciary by criticising this ill-advised ruling. I beg to differ.  Unlike Gill Miller, I am a graduate of Constitutional Law so I know something about the workings of our Constitutional Democracy and the division of powers between the executive and the legislature.  Whilst the Judiciary have an advisory role when asked to advise, they do not, and must not, have an interventionist role.  Over the centuries, Parliament has developed a series of checks and balances to ensure that it serves its citizens to the best of its ability, and it doesn’t need the Judiciary to shoehorn its way in.  If any one of our 650 elected representatives takes issue with the government, there are recognised ways of bringing them to book, the most draconian of which is a vote of no confidence.  As a footnote for Gill Miller and her camp followers, those 650 are elected, unlike the judges of the High Court, who are not elected but appointed.

I hope that wiser counsel will prevail, and Gill will be put back in her box.  Hope springs eternal.

PS.  Even as I write, some of my  more slippery colleagues in the profession are urging Liz Truss to back the judiciary and stand up for their Independence.  Humbug!  As usual, these characters have an agenda of their own, all to do with self-advancement and very little to do with the high moral ground, so my message to Liz is stand firm, if the judges have got it wrong, as they have, tell them, as you have, and if that is an attack on the independence of the judiciary, then I am Daffy Duck!

THE DAY AFTER TOMORROW

The countdown has begun.  Three weeks to go before ‘R’ day.  But what happens after that?  It doesn’t matter who ‘wins’, but after the vote, both sides have to pick up the pieces and try to put them back together again.  More important still, they will have to work together as colleagues, sometimes being responsible for policies they had just finished rubbishing.

My particular concern is the malign influence of the European Courts over our domestic law, and the near impossibility to do anything about it whilst we remain members of the EU. Some of you may have heard the interview on the Today programme with Sir Francis Jacobs, a former advocate general at the European Court of Justice.  He told listeners: “If there were 28 member states each taking a different view of what European Union law should mean, then it would be impossible for the European Union to function.  So it does require that Union law should be recognised as prevailing over national law.”

Asked if he believed those who wished British law to be sovereign should vote to leave the European Union, he said: “I think that is right, yes there is certainly no alternative to the view that European Union law must prevail over national law.”  And of course the same applies to the Court of Human Rights.

Like it or not, the reality is that the European Courts have supremacy over all national courts, otherwise, as Sir Francis said, it would be impossible for the EU to function.  This means that national idiosyncrasies must be ignored.  It also means that what suits your average Albanian car washer or Polish plumber may not suit us, but in a word: ‘tough!’

There was talk about a British Bill of Rights, rather like the Magna Carta, to replace the jurisdiction of the European Courts, but then, as has been made abundantly clear, you’re either in the club and bound by its membership rules, or you’re out.  There’s no half way house, and to suggest otherwise is to perpetuate the myth.  It is disingenuous, or almost intellectually dishonest, for David Cameron to suggest that we are, or can become, the masters of our own destiny, when quite clearly we are not.

My position remains unchanged.  I repeat, for the avoidance of doubt, that the European Courts hold no sway with me.  They seem to be a self perpetuating group of chancers who see the EU as a gravy train, where they can make up their own rules as they go along, and where there is nobody who can prick their bubble.

I lost faith in the European Courts when some convicted Jamaican ‘yardee’ could not be deported simply because he had adopted and cared for a cat! And I have lost count of the number of times that an illegal immigrant has earned the right to stay in the United Kingdom because he has fathered a child, poor little mite, regardless of the relationship he has ‘enjoyed’ with the mother.  And so it goes on.

Understandably, immigration remains a burning issue, and the fact that there are more Syrians trudging around the margins of Europe than in Syria itself is a humanitarian catastrophe, but it needs to be resolved in Syria.  Put bluntly, it is not the responsibility of Europe to house them when there are other ways.

In broad terms I admire Michael Gove, and he may well be the next Prime Minister. But he would only retain my respect and support if he accepted that a Bill of Rights isn’t worth the paper, or vellum, it’s written on, if we remain in the EU.  It’s a worthless document, unless we adopt the approach of the Italians, which is if they don’t like a particular piece of legislation, or a ruling, emanating from the European Courts, they simply ignore it.  Viva Italia!  And with Rome the centre of civilisation for centuries, whom I am to argue?  The Eternal City.

I remain wholly unpersuaded by the doom and gloom predictions of the Remain Camp.  In truth, they are an insult to our intelligence.  So I shall vote to leave, and let the Devil take the hindmost.

David Osborne is the author of three humorous books on the Law.  His latest, entitled Order in Court, is now available in all reputable bookstores and on Amazon.

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